[00:00:00] Speaker 01: Case number 15-1299 at L, ABM On-Site Services West, Inc. [00:00:05] Speaker 01: Petitioner versus National Labor Relations Board. [00:00:08] Speaker 01: Mr. Hall for the petitioner, Ms. [00:00:10] Speaker 01: Gainey for the respondent, and Ms. [00:00:11] Speaker 01: Niggas for the intervener. [00:00:36] Speaker 04: Good morning. [00:00:37] Speaker 03: May it please the court, Doug Hall for Petitioner ABM. [00:00:41] Speaker 03: I'd like to reserve three minutes for rebuttal. [00:00:44] Speaker 03: I apologize for my voice. [00:00:45] Speaker 03: I've been fighting the flu the last couple days. [00:00:48] Speaker 03: Don't stay right there then. [00:00:50] Speaker 03: No, I'm feeling better. [00:00:51] Speaker 03: It has affected my voice. [00:00:52] Speaker 04: Yeah, I hope you're feeling better. [00:00:54] Speaker 03: When an agency departs from its past precedent without providing a reasoned explanation for doing so, its actions are arbitrary. [00:01:04] Speaker 03: and must be set aside, even under the most deferential standard applied to judicial review of agency action. [00:01:11] Speaker 03: And that is the situation we're dealing with here today. [00:01:15] Speaker 03: In a handful of recent decisions, the National Mediation Board has broken from its past precedent in determining whether an air carrier exercises sufficient control over one of its contractors to bring the contractor within the scope of the Railway Labor Act. [00:01:31] Speaker 04: Could you help me understand the relationship between the board and the NMB on matters like this? [00:01:39] Speaker 04: Is the NLRB bound somehow to follow the decisions of the NMB? [00:01:47] Speaker 03: I believe it would be, Your Honor, and it always has. [00:01:51] Speaker 03: The RLA came first, and when the NLRA was created, it accepted those covered by the Railway Labor Act from its definition of employer and employee. [00:02:02] Speaker 03: The NLRB had long had a practice that [00:02:06] Speaker 03: In 1995, in its federal express decision, cited in our papers, it expressed as long-standing [00:02:14] Speaker 03: that though occasional departures might be warranted from time to time, the better practice was, let's refer these cases. [00:02:21] Speaker 04: So if that's the case, what's the NLRB supposed to do if the NMB changes course? [00:02:29] Speaker 04: I have a – and I think that's the gravamen of your argument, that the NMB has changed its view of control here. [00:02:36] Speaker 04: What is the NLRB supposed to do when the NMB makes such a change? [00:02:40] Speaker 03: Well, I think in that situation, the NLRB essentially steps into the NMB's shoes and has to defend the NMB's actions. [00:02:48] Speaker 03: But the ability of those who are subject to that ruling, such as AVM here, must have the ability to challenge it. [00:02:55] Speaker 03: And the only way we have is through a proceeding like this. [00:02:59] Speaker 06: What happens if the NMB hasn't, at least as far as we can tell, acknowledged that it's a change in course? [00:03:06] Speaker 06: And so if you're sitting there on the NLRB and you look at [00:03:09] Speaker 06: some earlier cases pre-2011, they look like they're in NMB jurisdiction, and you look post 2011, they're out, and you see no explanation from the NMB, then what's the board supposed to do? [00:03:24] Speaker 06: Is it supposed to define as best it can where they're headed? [00:03:28] Speaker 06: Is it supposed to apply current law? [00:03:30] Speaker 06: Or is it supposed to say, throw its hands up and say, you saw this NMB? [00:03:36] Speaker 03: I think the NLRB should be requiring the National Mediation Board to the extent the National Mediation Board is departing without reasoned explanation for providing a reasoned explanation. [00:03:46] Speaker 03: I think the NLRB itself has recognized, in this case and others, that the board has departed from its past task. [00:03:53] Speaker 00: So the NLRB can't require the NMB to do something, right? [00:03:57] Speaker 03: The NLRB cannot require the NMB to do something. [00:04:02] Speaker 03: It cannot, I think that's correct, Your Honor, but certainly the NLRB is then stuck with what the NMB has done. [00:04:07] Speaker 04: The NLRB is stuck with what the NMB has done. [00:04:13] Speaker 04: sent this to the NMV. [00:04:15] Speaker 04: Is there any doubt what the NMV would have decided? [00:04:19] Speaker 03: I believe there is. [00:04:19] Speaker 03: Maybe that's a bit strong. [00:04:21] Speaker 03: I believe there is. [00:04:22] Speaker 03: I think even under what we think is the improper test that the NMV has been advancing lately, that we could have made the argument that even if you look just at the role of our personnel decisions, we wouldn't be able to satisfy that. [00:04:35] Speaker 03: But as it may, that didn't happen. [00:04:37] Speaker 03: We believe even under that circumstance, we wouldn't have been able to make that argument and would have liked the opportunity to do so. [00:04:42] Speaker 06: And if they, that's one thing I was very confused about. [00:04:45] Speaker 06: So if this had been sent to the National Mediation Board and you had made these arguments and you said, look, we are exactly like, pick your peak pre-2011 case. [00:04:56] Speaker 06: And you went to do a little different stuff here and you haven't told us why and you make all your arguments. [00:05:06] Speaker 06: And they said, no, we like the post-2011 world better. [00:05:09] Speaker 06: You lose. [00:05:11] Speaker 06: Can you seek judicial review at that point? [00:05:15] Speaker 06: Can anybody make them give a reasoned explanation? [00:05:17] Speaker 03: Well, again, because it's an advisory opinion that's being sought by the NLRB of the NMB that then goes to the NLRB, which the NLRB then has to adopt. [00:05:25] Speaker 03: That's the only way we'd have to get to it. [00:05:28] Speaker 03: I'm not aware of any procedure we would have. [00:05:30] Speaker 06: So they would say, you're not covered by the National Mediation Board. [00:05:34] Speaker 06: And so then you're covered by the NLRB. [00:05:37] Speaker 03: The NLRB would adopt that, presumably. [00:05:41] Speaker 06: say it happened here, then you go into an unfair labor practice, you'd be challenging an LRB decision, but then we would just be reviewing. [00:05:49] Speaker 06: Does that give us the ability to look back at the National Mediation Board that started the problem, or would we just say NLRB did what it should do? [00:05:56] Speaker 03: I think you'd have to look at the NMB decision. [00:05:58] Speaker 03: I don't think there's any other way to get judicial review. [00:06:00] Speaker 03: You think what now? [00:06:01] Speaker 03: I'm sorry. [00:06:02] Speaker 03: You'd have to go back and look at the NMB decision in that situation that Judge Malletta is [00:06:07] Speaker 00: On the theory that the NLRB, because we can't directly review the NMB decision. [00:06:11] Speaker 00: So what you're suggesting is because the NLRB would have adopted the NMB decision, then we're reviewing the NLRB decision. [00:06:19] Speaker 00: It's just that we're effectively reviewing the NMB decision because the NLRB would have, by hypothesis, incorporated it. [00:06:24] Speaker 00: Is that what you're... That's right. [00:06:25] Speaker 03: And otherwise, there'd be no means for judicial review of what we think is an arbitrary agency decision. [00:06:32] Speaker 03: because of the way – the procedural ways being imposed upon the parties. [00:06:36] Speaker 00: In other words, your view is the NLRB can choose to address this in a variety of ways, but once it chooses to just adopt what the NMB has done, if the NMB has changed without any adequate explanation of the way the NMB has changed, the NLRB has bought into that, and that's [00:06:56] Speaker 03: I think it might be a slightly better case for the NLRB if it had actually sought referral from the NMB and the NMB made a decision based on these particular factors. [00:07:06] Speaker 00: But why? [00:07:06] Speaker 03: Well, it would have given the NLRB the opportunity to explain why. [00:07:11] Speaker 00: No, but I think the hypothetical that's been given you by Judge Millett is suppose that the NLRB did do the referral, and then the NMB just says, this is like our most recent decisions. [00:07:23] Speaker 00: Based on our most recent decisions, the company is subject to the NLRB, not NMB, sends it back without explaining why the latest decisions are different, adopted different. [00:07:36] Speaker 00: So we're kind of, you know, back in a situation where the NLRB just says, okay, then now we have the NMB's guidance. [00:07:46] Speaker 00: The NMB has said that it's following its most recent decisions. [00:07:48] Speaker 00: Under its most recent decisions, this is a company that's subject to the NLRB jurisdiction. [00:07:52] Speaker 00: That comes up on judicial review. [00:07:55] Speaker 00: and then we're in a situation in which the NLRB would have adopted the NMB's guidance, but the NMB would not have explained why its new decisions depart from its old ones. [00:08:05] Speaker 03: That's correct. [00:08:06] Speaker 03: You're right. [00:08:07] Speaker 03: I stand corrected. [00:08:08] Speaker 04: And in either case, the key is that we haven't been given an explanation for the change, right? [00:08:14] Speaker 04: That's right. [00:08:15] Speaker 04: No effort to reconcile with such a precedent. [00:08:17] Speaker 03: That's right. [00:08:17] Speaker 03: And that's true not even just with respect to... [00:08:22] Speaker 03: This test has traditionally been a multi-factor test. [00:08:25] Speaker 03: The way this is now being applied, it's a single factor test. [00:08:28] Speaker 03: What is the role of the carriers and personnel decisions? [00:08:30] Speaker 03: But even with respect to that, that factor has been now applied 180 degrees from how it was without providing a reasoned explanation. [00:08:40] Speaker 03: So in these recent cases, and this is part of why it's so difficult to understand what the National Mediation Board has done, [00:08:48] Speaker 03: in the Huntley, in the APS, the BAG, the Menzies, the airway cleaners, they actually continue to give lip service to the multifactor tests. [00:08:57] Speaker 03: And then they also continue to cite cases arising under the period from 96 to 2011. [00:09:06] Speaker 03: But the way they describe them is totally incorrect. [00:09:09] Speaker 03: For example, in Huntley, [00:09:11] Speaker 03: They found that there was not sufficient control over personnel decisions, because the carriers could report problems or misconduct, but the decision to discipline or discharge is made by Huntley. [00:09:23] Speaker 03: Same in all these other cases. [00:09:25] Speaker 03: Same in the case here. [00:09:26] Speaker 04: Let me interrupt you for a second, back up a little bit, traveling up on Judge Sreenivasan's question. [00:09:31] Speaker 04: So what's the, if we agreed with you, what's the appropriate remedy here? [00:09:36] Speaker 04: Is it that we instruct the NLRB to send it back to the NMB as they've done in the past and start over there? [00:09:45] Speaker 03: I think that would be the appropriate remedy. [00:09:48] Speaker 03: I don't know how the NLRB could offer what the NMB's reasoned explanation for departing from its past precedent would be. [00:09:56] Speaker 00: Why would we have to do that? [00:09:57] Speaker 00: Because the NLRB just decides to refer things to the NMB. [00:10:05] Speaker 00: It doesn't have to. [00:10:07] Speaker 03: It does not have to, but then if it doesn't, it's stuck with how it would defend. [00:10:12] Speaker 03: If you find, as we think you should, that the NMD has departed from its past precedent arbitrarily, and then you vacate and set aside. [00:10:22] Speaker 03: That's what the APA requires. [00:10:23] Speaker 03: Vacate and set aside the orders that are arbitrary. [00:10:26] Speaker 03: So now we're back at, we don't have a decision in the direction of election. [00:10:29] Speaker 03: What is the NMD going to do? [00:10:31] Speaker 03: Is it going to decide again itself? [00:10:34] Speaker 03: what the proper test should be without referring it to the NMB? [00:10:37] Speaker 03: And I suppose it could, but that could be back there. [00:10:40] Speaker 00: It may be that the NLRB concludes, in this hypothetical situation, it may be that the NLRB concludes that it has to send it back to the NMB, but that's for the NLRB to decide. [00:10:53] Speaker 03: india india india india india india india india india india india india india india india india india india india india india india india india india india india india india [00:11:26] Speaker 06: in the NLRB is we will send it over unless the answer is clear from prior decisions. [00:11:35] Speaker 06: And so if they were to depart from that, then we would just be reviewing whether the NLRB is adhering to its rule of when it refers and doesn't refer, right? [00:11:45] Speaker 03: That's right. [00:11:46] Speaker 06: I had a fact question, too. [00:11:47] Speaker 06: I thought I saw somewhere in the record that your contract between ABM and Consortium expired in 2016. [00:11:53] Speaker 06: Did it expire? [00:11:54] Speaker 06: Do you still have a contract? [00:11:55] Speaker 03: They still have the contract. [00:11:56] Speaker 03: Yes, it's been extended. [00:11:58] Speaker 03: It's been extended, yeah. [00:11:59] Speaker 03: So we're not in a moot situation. [00:12:01] Speaker 00: Well, I'm not understanding one thing, though. [00:12:05] Speaker 00: Yes, it's true that if we think that the NLRB acted arbitrarily in not sending it back to the NMB per the NLRB's own standards for when it does that, that's a viable route to rule in your favor. [00:12:19] Speaker 00: But that's not to the exclusion of another one which says that [00:12:24] Speaker 00: whatever the circumstances may be, there's an unexplained departure from a prior rationale. [00:12:29] Speaker 00: That's just something for the NLRB to work out. [00:12:31] Speaker 00: It may be that the way it works it out is to send it back to the NMB. [00:12:33] Speaker 00: It may be that it doesn't. [00:12:34] Speaker 00: I'm not sure why we know which one of those necessarily takes precedence over the other one. [00:12:38] Speaker 03: Right, I'm just having trouble myself trying to come up with how the NLRB would handle that. [00:12:42] Speaker 03: And then how would this, what would this court be reviewing? [00:12:44] Speaker 00: So can I ask one question to get back to a place you started with Judge Millett, which is the relationship between the two agencies and the two statutes. [00:12:51] Speaker 00: So under the NLRB statutes, [00:12:53] Speaker 00: It defines the term employer as follows, but then it says, but shall not include any person subject to the Railway Labor Act. [00:13:03] Speaker 00: So it's the NLRB's employer statute, definition of employer, which the NLRB has authority to construe, that is ultimately what's being construed here. [00:13:14] Speaker 03: Well, but when that exclusion requires, [00:13:19] Speaker 03: explication of a statute that is not that agency's statute. [00:13:23] Speaker 03: For example, this is the Cheney v. Railroad Retirement Board case we cite in our papers, where the issue was whether a particular railroad was subject to those statutes which required interpretation of the Interstate Commerce Act. [00:13:36] Speaker 03: This court held in that case, you're not entitled to deference because you have to interpret a statute that's not your own. [00:13:42] Speaker 03: We would say the same analysis applies here, which is – and again, here [00:13:47] Speaker 03: the National Labor Relations Board has historically noted its lack of expertise and that the board has that, which is why it has had this historic practice of referring things over. [00:13:57] Speaker 00: Right, so it may not get deference because it itself has said that with respect to this part of the definition, which is determining whether an employer fits within the exclusion because it's a person subject to the Railway Labor Act, it's sent things over to the NMB for the NMB's determination in the first instance. [00:14:13] Speaker 03: And I think there certainly are circumstances where it makes sense that it didn't do that. [00:14:19] Speaker 03: The Spartan Aviation case that they cite was a situation whether it was a flight training school subject to the Railway Labor Act or not, and the board MMB had just said no, so why send the same case over? [00:14:30] Speaker 03: Air California, intrastate as opposed to interstate commerce, not covered by the Railway Labor Act, and then we had decided why send it over. [00:14:38] Speaker 03: What they're doing here now, though, is basically saying we're not going to send any cases over for referral because there have been some cases where contractors have been held not subject to it. [00:14:48] Speaker 03: So it's not the same kind of analogy. [00:14:51] Speaker 03: It's not analogous to what they've done in the past when they haven't referred. [00:14:54] Speaker 03: Now they're basically not referring anything. [00:14:56] Speaker 03: I'm not aware of any decision since Menzies more than two years ago that arose out of the NMB from a referral from NLRB. [00:15:04] Speaker 00: But I thought that's because the NLRB, at least the regional director in this case, is focused on the most recent decisions. [00:15:11] Speaker 00: And if you only focus on the most recent decisions, then what the NLRB is telling us through the regional director is under the most recent decisions, there's no reason to send it over because this case is functionally identical to the most recent decisions. [00:15:25] Speaker 03: The point is, historically at least, whether these factors have met is a very fact-specific inquiry that requires analysis of several different things and weighing. [00:15:37] Speaker 03: And the NLRB board had never refused to refer things because the cultural factor was at issue. [00:15:49] Speaker 03: I think by saying basically now we're not going to require any cases to be sent over, we can argue the MMB has essentially acceded jurisdiction to us now of airline service providers. [00:16:00] Speaker 03: I think that has the risk of minimizing the MMB's expertise in these areas, especially because it hasn't defined what is a typical contract between a carrier and a contractor that would be relevant for the inquiry that is spun out. [00:16:18] Speaker 03: So I wanted to go back to make sure my point that I tried to make is clear about how the role in personnel decisions has changed. [00:16:26] Speaker 03: So in these cases, including this one, the rule that has now been created is that when a carrier can request removal or report misconduct, [00:16:35] Speaker 03: That's not enough if the employer, the contractor, conducts its own investigation or can decide to transfer someone instead of discharge. [00:16:44] Speaker 06: In these cases, the new... I have a question on this too, just how this works. [00:16:48] Speaker 06: When you're doing this analysis, or when one of the two boards was doing the analysis, do you look at the legal authority to get involved in personal decisions, the legal authority to look at records, or do you look at, in practice, are they [00:17:04] Speaker 06: getting involved or exercising these rights, because it seemed like both sides would go back and forth between that divestment on how it helped or hurt them. [00:17:11] Speaker 03: You look at both. [00:17:12] Speaker 03: So the NMB has looked at both. [00:17:14] Speaker 03: They looked at the contractual requirements. [00:17:16] Speaker 03: Did the contract give them the right to request removal? [00:17:20] Speaker 03: Does the contract give them the right to access the records, to audit, et cetera? [00:17:24] Speaker 03: And they also look at how things worked out in practice. [00:17:27] Speaker 03: In practice, has the carrier had an effect on these criteria? [00:17:32] Speaker 03: So both are relevant. [00:17:34] Speaker 03: So these recent cases have found, and the board in this case, found that if you... You're well over time. [00:17:42] Speaker 04: Let you finish up that last point quickly. [00:17:45] Speaker 03: Sure. [00:17:46] Speaker 03: So there's several cases. [00:17:48] Speaker 03: The one I highlight for you is AirServe from 2006. [00:17:50] Speaker 03: That was a case in which they had one customer in San Francisco, United. [00:17:56] Speaker 03: United responded to an NLRB request for information. [00:17:59] Speaker 03: The United letter specifically said, we have no role in discharge. [00:18:04] Speaker 03: We have no role in even discussing any of these personnel decisions. [00:18:08] Speaker 03: The most we do is we occasionally refer incidents that we've observed to the contractor that might require investigation and discipline. [00:18:17] Speaker 03: That very case was cited in these most recent cases by the NLRB. [00:18:22] Speaker 04: We'll give you back some time. [00:18:23] Speaker 04: Thank you. [00:18:28] Speaker 04: Good morning. [00:18:29] Speaker 07: Good morning. [00:18:29] Speaker 07: Amy again for the NLRB. [00:18:32] Speaker 07: I'll start with [00:18:34] Speaker 07: the referral issue. [00:18:36] Speaker 07: So here the board started its inquiry or the regional director started his inquiry by saying do we need to refer this case to the NMB or has the NMB already spoken on this issue and found that the issue had been spoken to in particular in a series of recent cases where the board did refer [00:18:58] Speaker 07: to the NMB for an advisory opinion. [00:19:00] Speaker 07: So the cases that we rely on, such as Bags and Menzies and airway clears. [00:19:07] Speaker 04: The question I have is that there seems to be no effort by the board to take cognizant of the fact that there's another set of recent precedent. [00:19:16] Speaker 04: that come out in a different direction. [00:19:19] Speaker 04: There doesn't seem to be any grappling with that. [00:19:21] Speaker 04: As you know, it's a fundamental principle of administrative law that when an agency changes course, they need to give an explanation. [00:19:28] Speaker 04: There's no question that we're in a different world today out of the most recent decisions than we were just five or six years ago. [00:19:36] Speaker 04: And yet we have no explanation from either board how we got to that new world. [00:19:42] Speaker 07: The NLRB here [00:19:46] Speaker 07: followed its precedent in looking to the NMB's decisions to see if the issue was clear. [00:19:53] Speaker 07: So in that way, the NLRB read what it had before it, which were these recent decisions where the NLRB said to the NMB, we need your advice on these types of cases. [00:20:05] Speaker 07: The NMB responded, applying the same six factor carrier control test that it had applied previously, [00:20:13] Speaker 07: adding language that was new in those cases about a typical subcontractor relationship. [00:20:20] Speaker 07: And when the board got this response several times over in these very factually similar cases, the NLRB then [00:20:28] Speaker 07: said under our precedent, this question has been answered. [00:20:32] Speaker 07: The law is clear. [00:20:33] Speaker 00: So here's what seems to be a little tricky about this. [00:20:35] Speaker 00: So let's just hypothesize that the NLRB is right to predict that recent decisions would lead the NMB to conclude that in this case, the company is not an NMB company, but is an NLRB company. [00:20:51] Speaker 00: Let's just hypothesize that that's true. [00:20:53] Speaker 00: That may be contested, but let's just hypothesize that's true. [00:20:56] Speaker 00: But if it's also true that it's only the recent decisions that would have done that and that a wave of decisions before that would have reached the opposite conclusion, then what are we supposed to do? [00:21:06] Speaker 00: Because you may be right that as a matter of prediction, the NMB is going to give you the answer that the regional director reached. [00:21:13] Speaker 00: But then there's still an administrative law question, because that prediction would have been based on a change in the way the NMB is looking at this that's been unexplained. [00:21:24] Speaker 00: And that's what we have before us. [00:21:29] Speaker 07: In terms of the NMB's own decisions, I mean, again, the way I can speak to how the NLRB read those decisions, and the NLRB read those decisions to say, we're applying the same test, [00:21:43] Speaker 07: this is how we're weighing the factors in that test. [00:21:46] Speaker 07: And that's what the NLRB did here. [00:21:50] Speaker 07: I would say also that that's what the NLRB had the authority to do here in terms of looking at the NMB. [00:21:59] Speaker 00: Well, that's the question. [00:21:59] Speaker 00: So suppose that the lay of the land, just assume that this is the lay of the land. [00:22:04] Speaker 00: The NMB has radically changed course on the way it approaches this. [00:22:08] Speaker 00: It may describe it under the same six factors, but let's just hypothesize, just bear with me and say, they've radically changed course in the way they apply those six factors, whereas pre-2011, this case would have come out one direction, i.e. [00:22:23] Speaker 00: that this company is subject to NMB jurisdiction. [00:22:26] Speaker 00: Post-2011, it's radically changed course so that it comes out the other way. [00:22:31] Speaker 00: and the NLRB just says, okay, we're basing it on the most recent decisions, this is a company that's within our jurisdiction, we go forward. [00:22:39] Speaker 00: But then, by hypothesis, there's been a radical change of course that's been unexplained. [00:22:45] Speaker 00: Does that, where does that leave the NLRB? [00:22:48] Speaker 07: Sure, I mean, by hypothesis, if there is a radical course change that has been unexplained, I mean, the, [00:22:58] Speaker 07: I guess I would say this, and this goes back to a hypothetical you were discussing a minute ago, which is if the court were to say that a recent explanation is required, I mean, at this stage of the case, the case would go back to the NLRB, right? [00:23:13] Speaker 07: And so then it would be up to the board then to make a decision, obviously, whether they thought they had authority or could provide some explanation or who they thought should provide that explanation. [00:23:26] Speaker 07: I guess that's the best that I could probably do with that. [00:23:28] Speaker 06: You had said that the board's test for referral is whether it's clear how the National Mediation Board would come out. [00:23:36] Speaker 06: Did the NLRB explain here or in some other case how it determines clarity [00:23:46] Speaker 06: with how long a memory determines clarity. [00:23:51] Speaker 07: No, I wouldn't say that the board set out a test for making that initial assessment. [00:23:57] Speaker 06: Is that a problem here, though? [00:23:59] Speaker 06: I mean, we're not talking about going back to ancient history. [00:24:02] Speaker 06: We're talking about in the last six years, five years, we're seeing a difference. [00:24:13] Speaker 06: And we'd like to be clear [00:24:16] Speaker 06: I don't know. [00:24:20] Speaker 07: This is a situation, though, where the board was reading advisory opinions that it received from the NMB. [00:24:30] Speaker 07: So the board was sending over cases, getting back answers with, I mean, answers with [00:24:36] Speaker 07: Application of the factors to the facts of the case, all those types of things are contained in these decisions that we can read to understand how the NMB is applying the test. [00:24:46] Speaker 07: And I mean, at a certain point, and I think the regional director reached that point here of saying, okay, we've sent over a certain number of these cases and we keep getting back the same answer, so at this point, it's clear what answer we will get, or it's clear, at the very least, what answer we will get as to what the test is. [00:25:06] Speaker 07: And then the regional director here, based on fact findings from the record, applied that test after being told by the NMB multiple times what the test was. [00:25:16] Speaker 06: That just raises another question for me. [00:25:17] Speaker 06: I'm not sure I even understand what the NLRB's test for referral is. [00:25:23] Speaker 06: It came out as a similar case without jurisdiction. [00:25:28] Speaker 06: you said, which I think is perfectly consistent with what the Board has said before, I want it to be clear, and now you're making it sound like, well, we just need to know what the legal test, that's what has to be clear, as opposed to how they apply the facts to that legal test, or the lens through which you're emphasizing the factors. [00:25:48] Speaker 07: I would describe it as a two-step process, and if this isn't responsive, then please let me know. [00:25:54] Speaker 07: First the board decides whether to refer a case to the NMB by seeing if the NMB has answered similar questions such that the law is clear in terms of answering a similar question. [00:26:06] Speaker 06: Now the board is... When you say the law is clear, do you mean the outcome or the legal test is clear? [00:26:13] Speaker 07: I would say... [00:26:15] Speaker 07: to a certain extent both, but more in terms of what the legal test is. [00:26:19] Speaker 07: Because the board is not saying, the board still is then going to apply the NMB's test. [00:26:26] Speaker 07: So the board isn't just going to say, in these other similar cases, we know not only what test the NMB applied, but that in all those cases, the NMB said they didn't have jurisdiction, so we don't have jurisdiction here. [00:26:37] Speaker 07: I mean, the board went on to then take another step in the process, which is to gather the facts, hold a hearing, gather evidence, and then [00:26:44] Speaker 07: take that evidence and apply the test to those facts. [00:26:49] Speaker 07: So there is another step in the process when the labor board could have arrived at a different result because of the evidence that came in through the record. [00:27:00] Speaker 00: What the board said in the Federal Express decision is that it doesn't need to refer [00:27:08] Speaker 00: when the case involves a factual situation similar to the one in which the NMB has previously declined jurisdiction. [00:27:15] Speaker 00: So it's looking at the factual situation. [00:27:16] Speaker 00: It's not just looking at the legal test. [00:27:17] Speaker 07: I would agree. [00:27:18] Speaker 07: It is also looking at the factual situation. [00:27:21] Speaker 07: I think what I was trying to clarify is that the board, at that point in deciding not to refer the case, is not already saying there's no... So here the board could have referred the case before even holding a hearing. [00:27:32] Speaker 07: or something like that. [00:27:34] Speaker 07: So here, the board decided not to refer the case, at least because it seemed factually similar and the law seemed clear enough to hold a hearing. [00:27:43] Speaker 07: And then at that point, the board still could have applied the NMB's test and come out a different way because it's still engaged in that second fact-finding process after its initial decision not to refer the case. [00:27:57] Speaker 07: Or the board could have, after holding a hearing, decided to refer the case at that point. [00:28:00] Speaker 06: Does the board get any deference in determining whether the National Mediation Board position is clear? [00:28:11] Speaker 06: What deference would you be entitled to in this upfront determination as to whether the state of National Mediation Board precedent is clear? [00:28:19] Speaker 07: So the decision as to whether to refer. [00:28:21] Speaker 07: I would say in terms of the decision whether to refer, [00:28:27] Speaker 07: I mean, this court in the UPS case said that there's no – the board and the NMB, neither entity or agency necessarily has precedence in deciding these questions of jurisdiction. [00:28:42] Speaker 07: And so – and the court also said in UPS that there was no legally compelling reason that the board could be required to refer a case to NMB. [00:28:52] Speaker 07: I would look to, that doesn't answer specifically the deference question, but I would look to that in saying that the board does not have an obligation to refer to NMB. [00:29:03] Speaker 06: Even though the board itself is recognized, in its own words, the primary authority and primary jurisdiction of the immigration board to make this decision, I guess you'd have to explain why you were departing from that. [00:29:21] Speaker 07: I don't know that the board in seeking advisory opinions has said that the, I mean, the board has said that they are letting. [00:29:29] Speaker 06: No, except primary jurisdiction and primary authority. [00:29:31] Speaker 07: Over RLA, yes, I'm sorry. [00:29:33] Speaker 07: I'm sorry. [00:29:35] Speaker 06: Pull over this question. [00:29:36] Speaker 06: Right, over these questions. [00:29:37] Speaker 06: You got this turf war. [00:29:38] Speaker 06: Not this war, you all have been quite. [00:29:40] Speaker 06: Sure, sure. [00:29:42] Speaker 07: I mean, it's clear that the IMB has [00:29:45] Speaker 07: primary authority to interpret the RLA and so to that extent yes the board and the board has recognized that I'm sorry if I didn't understand first that's what you're saying. [00:29:54] Speaker 07: I do think though that the that precedent such as from this court is clear that the board does not have an obligation to refer those cases to the NMB. [00:30:03] Speaker 07: I also would say that in terms of the board making a decision whether to refer in this situation as to whether there is enough clarity [00:30:13] Speaker 07: I mean, the board in that case is looking at its own precedent and cases where it referred and didn't refer. [00:30:20] Speaker 07: And to the extent the board's looking at its own precedent, I would say that the board would receive deference. [00:30:25] Speaker 04: Great. [00:30:25] Speaker 04: Thank you. [00:30:26] Speaker 04: We'll hear from the intervener now. [00:30:38] Speaker 02: Morning, Your Honor. [00:30:39] Speaker 02: David Nyges for Intervenor International Association of Machinists, or IAM. [00:30:47] Speaker 02: The board has not always referred cases to the NMB. [00:30:53] Speaker 02: And historically, if you go back to the 1960s and the Dobbs case in 1971, the board didn't refer it to the NMB, didn't think it had a primary jurisdiction. [00:31:06] Speaker 02: And the Sixth Circuit upheld that determination to decide it in the first instance. [00:31:15] Speaker 02: The other thing that the court in Dobbs Houses did was it analyzed what a typical subcontractor, what I'll call a typical subcontractor was versus what an RLA contractor was. [00:31:35] Speaker 02: And it goes back to cases that were decided right after the 1934 RLA amendments. [00:31:45] Speaker 02: So in Dobbs' houses, it looked specifically at two cases, one called Fred Harvey, where the contractor, it was under carrier control because Fred Harvey worked only for, had a contract with Santa Fe Railroad. [00:32:08] Speaker 02: It was prohibited from working for any other contractor. [00:32:14] Speaker 02: other than either railroad or any other entity other than Santa Fe without the express permission of the railroad. [00:32:25] Speaker 02: And it was also in years when the contractor Fred Harvey had losses, Santa Fe covered the losses. [00:32:36] Speaker 02: In years when there were profits, Santa Fe shared in those profits. [00:32:42] Speaker 02: If you go back to the decision of the Eighth Circuit in Reynolds, the court defined what a RLA contractor was. [00:32:59] Speaker 02: And the types of contractors we have, [00:33:03] Speaker 02: we're deciding about here do not fall in those categories. [00:33:08] Speaker 02: An RLA contractor, according to the 8th Circuit in Reynolds, is one which so surrendered its right of control where it failed to exercise it, in fact, as to have lost its effect, in effect, its identity or status as a separate business enterprise in furnishing services involved. [00:33:31] Speaker 02: That's the kind of contractor Fred Harvey was, but it's not the kind of contractor ABM was or Dobbs Houses. [00:33:39] Speaker 02: If you look at Dobbs Houses, it has all of the same indicia of control. [00:33:46] Speaker 06: Is the National Mediation Board the test that you just quoted from the Eighth Circuit? [00:33:52] Speaker 06: Does the National Mediation Board say that? [00:33:56] Speaker 02: No, that was the Eighth Circuit. [00:34:01] Speaker 02: No, it was not the non-elitiation board. [00:34:03] Speaker 02: But what I'm saying is that in the recent cases with the six factors, what the NMB has done is found that there's a typical subcontractor relationship, which is different from an RLA contractor, in that with an RLA contractor, [00:34:32] Speaker 02: The carrier puts limitations on the contractor's ability to operate as a separate business entity in its own business interest, as opposed to satisfying a client's operational desires or giving weight to the client's opinion. [00:34:48] Speaker 02: If you look at the case in Dove's houses, [00:34:54] Speaker 02: Like ABM, Dobbs Houses had very meticulous and demanding airline customers that required adherence to detailed specifications and manuals, gave direct orders to the contractor's employees, and could request removal of contractor employees from their airplanes. [00:35:11] Speaker 02: Dobbs Houses also alleged that 10 of its employees at other airport locations were discharged at the request of airlines. [00:35:23] Speaker 02: Despite the presence of those in Disha of control, the Sixth Circuit found no RLA jurisdiction. [00:35:32] Speaker 02: Thank you. [00:35:32] Speaker 04: We have your argument, Mr. Negus. [00:35:34] Speaker 04: Appreciate it. [00:35:35] Speaker 02: Thank you, Your Honor. [00:35:36] Speaker 04: How much time does Mr. Hall have? [00:35:41] Speaker 04: No. [00:35:42] Speaker 04: If you have rebuttal, we'll give you a minute. [00:35:46] Speaker 04: But only if you have something to rebut. [00:35:47] Speaker 03: Certainly. [00:35:48] Speaker 03: Just with respect to what Mr. Negus was just stating about, [00:35:51] Speaker 03: the Dobbs House and Reynolds, we could all argue about whether the NMB should or could adopt a typical subcontractor relationship, as it's more in line with Dobbs. [00:36:02] Speaker 03: That doesn't change the fact that if it does so, reason decision-making by the agency requires that they explain why. [00:36:10] Speaker 03: And that's Allentown Mac, the Supreme Court's decision in that case, and numerous others. [00:36:14] Speaker 03: That's all I'll leave you with. [00:36:15] Speaker 03: Thank you very much for putting up with my voice today. [00:36:18] Speaker 03: Great. [00:36:18] Speaker 04: Thank you very much. [00:36:18] Speaker 04: The case is submitted.